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Conservatives suggest divorce law could be revised to help same-sex couples

The Conservative government suggests it will revisit the federal divorce law to see how to more easily dissolve the same-sex marriages of couples who married here but cannot get a divorce abroad.

Government lawyers are arguing that if same-sex couples could not be legally married in their home country, then their Canadian wedding is not valid.
(Jim Young / REUTERS)

By Tonda MacCharlesOttawa Bureau

Thu., Jan. 12, 2012

OTTAWA—The federal Conservative government suggested Thursday it will revisit the federal divorce law to see how to more easily dissolve the same-sex marriages of couples who married here but cannot get a divorce abroad.

It was unclear if the government would also ease residency requirements for divorce for all couples, or would just move to address the need of couples who can’t end their Canadian same-sex marriages abroad.

The move came after revelations that a senior counsel for the federal justice department had opposed a same-sex divorce by arguing firstly that same-sex marriages performed in Canada aren’t “legally valid” unless also recognized by a couple’s home country or state.

Lawyer Sean Gaudet argued secondly that the couple — who married in Toronto in December 2005 and separated two years ago — didn’t meet Canada’s one-year residency requirement (that all couples face) for a divorce. One lives in Florida, the other in the U.K.

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It was his first argument that caused a firestorm of public reaction on news websites, and led to charges by opposition critics the government was moving to undo same-sex marriage “by stealth,” as Liberal interim leader Bob Rae put it.

The revelations in a Globe and Mail story blindsided the Prime Minister at a news conference in Halifax.

Stephen Harper said it was news to him and muttered he was not interested in re-opening the gay marriage debate.

Later Thursday, Nicholson released a written statement to clarify the government “has no intention of reopening the debate on the definition of marriage.”

“I will be looking at options to clarify the law so that marriages performed in Canada can be undone in Canada.”

There have been about 15,000 same-sex marriages in Canada since 2003, when the Supreme Court of Canada ruled gays and lesbians have the same marriage rights as heterosexual couples under the Charter of Rights and Freedoms. An estimated 5,000 of those marriages involved non-residents.

There have also been same-sex divorces but this is believed to be the first case of gay non-residents seeking a divorce.

That presents serious problems for same-sex couples from jurisdictions where gay marriage isn’t legally recognized who travel to Canada to get married and later split up.

And for obvious practical reasons, many couples can’t quit their jobs and move to Canada for 12 months to get a divorce where the union was granted.

McCarthy welcomed Nicholson’s statement.

“That’s all we’re asking,” said McCarthy in an interview.

“The simple answer is a little amendment that says if we married you, and you are unable to be divorced in your home jurisdiction, then we will exempt you from the residency requirement for a divorce.”

Although Nicholson’s statement was far from precise, McCarthy said the government could amend the Divorce Act to drop the one-year residency requirement for same-sex couples; consent to a judicial declaration in the women’s case that the requirement doesn’t apply; or it could proceed on a case-by-case basis and consent to other exemption applications as they arise.

Rae had earlier suggested Harper’s Conservative government was making a move to gut same-sex marriage rights “by stealth,” though he said he took Harper at his word he personally didn’t know about the case.

NDP’s Olivia Chow said the Harper government was using a “back door way” to deny the marriages of thousands of gay couples who married in Canada and live abroad in states hostile to gay marriage.

In Vancouver later Thursday, Harper said the Tories “are not going to reopen that particular issue. This is a complicated issue the minister of justice has put out a statement clarifying that.

“The law recognizes same-sex marriagees in Canada. The government is not going to open that.”

McCarthy said none of it could have been a surprise given how many foreign gay couples flocked to Toronto, Vancouver and Niagara Falls after the Supreme Court of Canada ruling on the same-sex marriage reference in 2004.

Dan Savage, the Seattle columnist who launched the “It Gets Better Project” in 2010 to prevent suicide by gay teens (endorsed by several Conservative cabinet ministers), suggested in an online riposte that legal recognition of his own marriage is in jeopardy.

“If same-sex marriage isn’t legal for foreigners in Canada, if our marriages aren’t valid in Canada, it’s possible that this move by Harper’s government means that couples like us — same-sex couples from WA (Washington state) who married in Canada — are no longer domestic partners under the law here in Washington state,” he wrote. “What a headache.”

Dave Quist, executive director at the Institute of Marriage and the Family, one the most ardent opponents of same-sex marriage, said all the policy ramifications may not have been thought through years ago when same-sex marriage was first allowed.

But even his group — which still argues social and economic outcomes for women and children are better within traditional marriages — believes there is little public appetite to see the legal debate reopened, especially since it wasn’t raised during the past election.

“For most Canadians I don’t think it’s on their horizon or agenda,” said Quist.

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